1. In a criminal case resulting in defendant's convictions of one count of aggravated indecent
liberties with a child, K.S.A. 21-3504(a)(3)(A), and one count of kidnapping, K.S.A. 21-3420(b),
the record is examined, and it is held: (1) The district court did not err in: (a)
responding to the jury's question, (b) admitting evidence of prior crimes, and (c) imposing
sentence; (2) the defendant's claims of prosecutorial misconduct and cumulative error lack
merit; and (3) the evidence was sufficient to sustain the convictions.

2. A prior conviction upon which a defendant has been classified as a persistent sex offender
under K.S.A. 1997 Supp. 21-4704(j) may not be used in determining that defendant's criminal
history category.

3. For the purposes of sentencing under K.S.A. 1997 Supp. 21-4704(j), the district court is
not
required to make a factual finding beyond the existence of defendant's convictions of the
instant crimes and certain prior crimes when all the crimes were defined by the legislature
under K.S.A. 1997 Supp. 22-3717(d)(2) as sexually violent crimes.

4. Under the facts of this case, the district court's decision to double defendant's sentence
under
K.S.A. 1997 Supp. 21-4704(j) did not violate Apprendi v. New Jersey, 530 U.S. 466,
147 L.
Ed. 2d 435, 120 S. Ct. 2348 (2000).

Patrick H. Dunn, assistant appellate defender, argued the cause, and
Steven R. Zinn, deputy appellate
defender, was with him on the briefs for appellant.

John H. Taylor, assistant county attorney, argued the cause, and Carla J.
Stovall, attorney general, was with
him on the brief for appellee.

The opinion of the court was delivered by

SIX, J.: Defendant William C. Moore appeals his convictions of one count of aggravated
indecent liberties with a child, K.S.A. 21-3504(a)(3)(A), and one count of kidnapping, K.S.A.
21-3420(b).

The issues before us are whether the district court erred in: (1) responding to the jury's
question, (2) admitting evidence of prior crimes, and (3) imposing an unconstitutional sentence.
Moore also claims that prosecutorial misconduct, insufficient evidence, and cumulative error
require
reversal of his convictions.

Our jurisdiction is under K.S.A. 20-3018(c) (transfer from Court of Appeals on our own
motion).

We find no error in the trial proceedings and affirm Moore's convictions. We also hold
that
the district court's decision to double defendant's sentence under K.S.A. 1997 Supp. 21-4704(j)
does
not violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.
2348 (2000).
However, sua sponte, we raise the issue of the legality of Moore's sentence and the
district court's use
of a prior conviction to enhance his criminal history score and to qualify him as a persistent sex
offender under 21-4704(j). Moore's sentence is vacated, and the case is remanded for
resentencing.

FACTS

On August 20, 1997, a 15-year-old boy, S.C., reported that a few days before, he saw
Moore
walk from Moore's house to the backyard of the house next door where 6-year-old L.V. lived.
S.C.
next saw Moore take L.V. by the hand and walk her back to Moore's house. S.C. "got
suspicious," so
he knocked on Moore's front door. Receiving no answer, he walked around the house and peered
into
the back bedroom window. S.C. saw Moore on the bed, leaning over L.V. with his penis exposed
on
her chest. L.V. wore a flowery swimsuit, and her legs were spread around Moore's waist. L.V.
was
holding a red teddy bear, and Moore's hands were on L.C.'s waist. S.C. left the window. About 15
or
20 minutes later, he saw Moore and L.V. come out of the house. Moore hugged L.V. before she
returned to her backyard.

Initially, S.C. did not report the incident to the police because he did not want to become
involved with the police. He had recently been released from juvenile detention for violating
curfew.
Three or four days after the incident, S.C. informed L.V's mother and reported the incident to
police.
Later, he admitted that he had been untruthful in some of his statements to the police because he
was
afraid of being arrested for burglarizing Moore's house on the day before the incident. Details of
S.C.'s version of events changed over time. At trial, S.C. explained that some of the
inconsistencies
between his initial report to the police and his testimony at the preliminary hearing and trial
occurred
because he did not want to admit that he had burglarized Moore's home.

According to S.C.'s trial testimony, he and J.H. had broken into Moore's house one
evening in
August 1997. At trial, S.C. testified against Moore in exchange for the State's agreeing not to
prosecute him for the burglary of Moore's house.

Officer Hester testified that L.V. said Moore took her into his house and showed her a
knife, a
toy, and his "private part." When another officer asked her if Moore had shown her his private
parts,
she said, "No." L.V.'s mother testified that L.V. said Moore had led her out of her backyard and
into
his house where he pushed her onto the bed. L.V. also told her mother that Moore showed her a
knife
and a toy. According to L.V.'s mother, about a week later after talking to the officer, L.V. told
her
that Moore had showed her his "private part" but that she had closed her eyes.

L.V. testified at trial that she had been in Moore's house one time that summer. L.V. and a
friend were swimming in her backyard. Moore was on his porch and let her come inside his house.
L.V. claimed that her friend was with her. She said Moore took her into his bedroom. L.V. also
said
Moore did "something bad," which was to show her a toy and a knife. She testified that she had
never
seen a grown-up's "private place."

The district court admitted into evidence a videotape that was recovered from the items
S.C.
had stolen from Moore's home. The tape contained two segments showing L.V. and
neighborhood
children playing in L.V.'s backyard. According to Moore, he had repaired a video camera during
the
spring or summer of 1997. He said he tested the camera by placing it in a window and then
making
adjustments.

Geraldine Blair, a program manager at a mental health clinic and a licensed specialist
clinical
social worker, was a witness for the State. Blair specialized in the treatment of sex offenders. She
testified that sometimes child molesters videotape children so they can later masturbate or
fantasize
about that person. After viewing the videotape showing children at play over different periods of
time, she expressed concern about an offender making such tapes. In her opinion, it suggested the
offender might be relapsing.

The State also presented evidence of Moore's prior misconduct. In 1988, Moore pled nolo
contendere to charges of sexual exploitation of a child and indecent liberties with a child. Moore
served a prison term for these crimes and was paroled in 1995.

An investigating officer testified that the 1988 case was based upon a videotape in which
Moore filmed a young girl. The tape had been destroyed by the time of the current trial. The
officer
testified to what he had seen on the tape. The tape depicted the girl lying fully clothed on a couch.
After some whispering, she gyrated her hips. After a distortion in the tape, the girl's pants and
panties
were around her knees, and Moore reached over and fondled her vaginal area; then the camera
zoomed in on her vaginal area.

Moore served a prison term for these crimes and was paroled in 1995.

Moore testified in his defense. He denied taking L.V. into his house, showing her a toy, or
exposing his genitalia to her. He claimed that he was being set up by S.C. According to Moore, he
returned from work one evening around midnight and caught S.C. and his friend J.H. "fooling"
with
Moore's car. When confronted, they allegedly swung a baseball bat at Moore. Moore later learned
that they had loosened lug nuts on his car. Moore claimed that he asked a friend to report the
incident
to police, but there was no reference on the police department's computer logs concerning such a
report. Moore's parole officer testified that Moore never informed him of the alleged incident. At
trial,
both S.C. and J.H. denied any incident involving Moore's car or a baseball bat.

Moore also testified that S.C. tried to extort money from him. Once, S.C. came to
Moore's
house and said, "[Y]ou give me $500 dollars or you will go back to prison. I'm going to tell the
police
something that will put you back in prison." A friend of Moore's testified that he had heard a
conversation where S.C. talked to Moore about $500. However, Moore did not report the "back
in
prison" incident to police.

Moore was convicted of both crimes. The district court imposed two concurrent terms of
380
months' imprisonment. Moore was 67 years old at the time he was sentenced in 1998.

DISCUSSIONThe Jury Question

Moore argues that the district court erred in its response to a question submitted by the
jury.
We disagree.

K.S.A. 22-3420(3) provides:

"After the jury has retired for deliberation, if they desire to be informed as to any part of
the law or evidence arising in the case, they may request the officer to conduct them to the court,
where the information on the point of the law shall be given, or the evidence shall be read or
exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his
counsel and after notice to the prosecuting attorney."

Our standard of review is abuse of discretion. See State v. Manning, 257 Kan.
128, 130, 891
P.2d 365 (1995). Judicial discretion is abused only when no reasonable person would take the
view
adopted by the district court. State v. Lopez, 271 Kan. 119, 125, 22 P.3d 1040
(2001).

Before jury deliberations, the district court gave the following instruction:

"The defendant is charged with the crime of aggravated indecent liberties with a child.
The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. That the defendant fondled or touched the person of [L.V.] in a lewd manner, with
the intent to arouse or satisfy the sexual desires of either the child, himself or both;

"2. That [L.V.] was a child under 14 years of age; and

"3. That this act occurred between 1 and 20 August, 1997, in Geary County, Kansas.

"Lewd fondling or touching may be defined as a fondling or touching in a manner which
tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral
sense of a reasonable person, and which is done with the specific intent to arouse or satisfy the
sexual desires of either the child or the offender or both. Lewd fondling or touching does not
require contact with the sex organ of one or the other."

During deliberations, the jury asked, "Would the taking of videotapes qualify for the
charge of
aggravated indecent liberties with a child?"

Outside the presence of the jury, the judge expressed to Moore and counsel that in
answering
the question, he would simply reread the jury instruction on indecent liberties or direct the jury to
that
instruction. Defense counsel thought the judge should tell the jury that the answer to the question
was
"no." After calling the jury into the courtroom, the judge told the jury to "carefully reread
Instruction
Number 6, which sets out the elements the State has to prove to establish the charge of
aggravated
indecent liberties with a child."

Bandt was convicted of three counts of theft and one count of illegal removal of a motor
vehicle identification number. After retiring for deliberations, the Bandt jury asked
whether the
knowledge that the goods were stolen had to exist when the goods were received or could simply
exist at some later point. The district court refused to elaborate on PIK Crim. 59.01, the
instruction
given on the question of law. However, the judge permitted counsel for the parties to present to
the
jury a brief colloquy of their conflicting statements of the law. 219 Kan. at 821-22.

On appeal, we noted that normally the jury instruction as given would have been sufficient
but
the unusual circumstances in Bandt created a positive duty for the district court to
clarify its former
instructions. Unlike most cases, the district court effectively required a confused jury to determine
the
question of Bandt's guilt or innocence without having the key question of law determined by the
court. We concluded that in view of the jury's confusion under the circumstances, the district
court's
failure to clarify the former instructions was prejudicial and denied the defendant a fair trial. 219
Kan.
at 823.

The facts here differ from the facts in Bandt. The question and resolution here
are similar to
the question and resolution in State v. Peck, 237 Kan. 756, 703 P.2d 781 (1985). In
Peck, during the
course of deliberations, the jury sent a question to the district judge concerning one of the
instructions. Without the intervention of the parties, the judge responded to the jury's question:
"'The
Court declines to elaborate upon the written instructions already provided. Please re-read the
instructions and apply those instructions collectively to the facts as proved to your satisfaction
beyond
a reasonable doubt.'" 237 Kan. at 765. On appeal, we found no abuse of discretion in the response
and said: "When the question has already adequately been covered by the original instructions, the
trial court may decline to answer and may direct the jury to re-read the instructions already
given."
237 Kan. 756, Syl. ¶ 6.

Aggravated indecent liberties requires a touching. See K.S.A. 21-3504(a)(3)(A). Clearly,
the
videotaping of a child does not constitute a touching. Unlike the situation in Bandt,
where counsel
was permitted to advance conflicting statements of the law, the jury's question was already
adequately
covered by the court's instruction.

We have discussed in previous cases the standard of review for allegations of
prosecutorial
misconduct raised for the first time on appeal. See State v. McCorkendale, 267 Kan.
263, 979 P.2d
1239 (1999).

In State v. Pabst, 268 Kan. 501, 505, 996 P.2d 321 (2000), we described the
approach to
prosecutorial misconduct in the case of closing argument:

"The analysis of the effect of a prosecutor's alleged improper remarks in closing
argument is a two-step process. First, we decide whether the remarks were outside the
considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the
prosecution is given wide latitude in language and in manner of presentation of closing argument
as long as the argument is consistent with the evidence. Second, we must decide whether the
remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the
jury against the accused and deny a fair trial, requiring reversal. [Citation omitted.]"

Moore argues the prosecutor's comments improperly vouched for the credibility of a
State's
witness and impermissibly painted Moore as a liar.

During closing arguments, the prosecutor included the following remarks:

"Something about Charlie Moore [defendant] scared that kid [L.V.] to death, and when the
defense gets done talking about [S.C.] this, and [S.C.] that, and Paula [V.] that, and Paula [V.]
this and that, just remember who the victim in this case is. It's not
[S.C.], it's [L.V.], and nothing
that you've been told here in the last two days should indicate to you that she's a liar.

"Where the defense blew it in this case was what they were going to admit and what
they were willing not to admit. You see, you don't have to agree as far as [S.C.] to convict in this
case. What did the defendant say? 'The girl was never in my house. Never. Not with me.' Well,
even the first time she talked to her mother, before she ever mentioned private parts or him being
exposed or places where men go potty and stuff like that, she was already saying, 'I was in the
house with him,' before anyone had a chance to coerce her or drum a story into her or pressure
her, or be repeatedly interviewed until she got the story right. She was already saying, 'I was in
that house.' Well, she already paints him as a liar just by that alone.

"Now, if the defense had come in and said, 'Well, yeah, she was in the house but nothing
happened,' then it might have worked, they might have gotten away with it, but you can't
reconcile the girl's testimony alone with what he's saying. Forget [S.C.] for a second. You could
convict based on [L.V.] right now. [S.C.] is a bonus to me, take him for what you want, but this
case is won with [L.V.], that videotape of her interview, and that videotape that he took in his
house of her." (Emphasis added.)

Moore asserts that the prosecutor's two comments on the believability of Moore's
testimony
was akin to the prosecutor's egregious conduct in Pabst. We disagree. Here, the
prosecutor was
explaining to the jury why, in light of the evidence presented, Moore's story was not feasible.

The prosecutor's comments were not outside of the "considerable latitude" the prosecutor
is
allowed in discussing the evidence. Here, it appears the prosecutor was attempting to show that
Moore's version of events was not feasible based on the testimony of L.V. at trial. Under the facts
of
this case, the prosecutor's comments were not so gross and flagrant as to prejudice the jury
against
the defendant and to deny him a fair trial, nor do the comments reflect any ill will on the
prosecutor's
part. See State v. Finley, 273 Kan. ___, ___, 42 P.3d 723 (2002).

K.S.A. 60-455

Next, Moore argues the district court erred in admitting evidence under K.S.A. 60-455 of
his
prior 1988 convictions.

In 1988, Moore pled no contest to sexual exploitation of a child, K.S.A. 21-3516 (Ensley
1988), and indecent liberties with a child, K.S.A. 21-3503(b) (Ensley 1988). The convictions
stemmed from a videotape that Moore made of a young girl playing in the aisles of his store. He
later
recorded himself fondling the little girl's genitals. The State sought to admit the prior convictions
to
show preparation, plan, and identity. Over Moore's objection, the district court permitted the
State to
introduce the prior crimes evidence because of the similarities as to identity, motive, preparation,
and
plan, and because the prior crimes' probative value outweighed the prejudice.

K.S.A. 60-455 provides:

"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a
specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong
as the basis for an inference that the person committed another crime or civil wrong on another
specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when
relevant to prove some other material fact including motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident."

Three requirements must be satisfied for the admission of evidence under K.S.A. 60-455.
First, the evidence must be relevant to prove one of the facts specified in the statute. Second, the
fact
must be a disputed, material fact. Third, the probative value of the evidence must outweigh its
potential prejudice. If these requirements are met, the scope of appellate review is limited to
whether
the district court abused its discretion. State v. Simkins, 269 Kan. 84, 92, 3 P.3d
1274 (2000).

Under K.S.A. 60-455, prior offenses need not be identical in nature to the offense for
which
the defendant is on trial. Similarity is sufficient. State v. Lane, 262 Kan. 373, 390,
940 P.2d 422
(1997).

The two crimes at issue here are similar to Moore's 1988 convictions. Both crimes
involved
young girls of comparable age. Moore prefaced his criminal conduct with a videotape recording
of his
victims at play before any fondling of the victims' genital areas or exposing his penis to the
victims. In
addition, both crimes occurred privately where Moore had control of the environment, either in
his
store or his home. Moore also contends that even if we find his prior convictions relevant, it is
nevertheless immaterial to the facts in dispute. We disagree. See State v. Faulkner,
220 Kan. 153,
156, 551 P.2d 1247 (1976). Moore's defense that the alleged conduct never took place squarely
contradicts the issues of identity, motive, preparation, and plan and place them in issue.

Finally, we note that in addressing the K.S.A. 60-455 question, the district court
instructed the
jury as follows: "Evidence has been admitted tending to prove that the defendant committed a
crime
other than the present crime charged. This evidence may be considered solely for the purpose of
proving the defendant's identity, motive, preparation, and plan in the current case."

We conclude that the district court did not abuse its discretion in admitting evidence under
K.S.A. 60-455 regarding Moore's 1988 convictions.

Sufficiency of the Evidence

Moore also contends there was insufficient evidence to support his convictions. A number
of
pages in his brief are devoted to illustrating inconsistences in the testimony of the State's
witnesses to
undermine their credibility and to suggest that his conviction was secured by circumstantial
evidence
at best. Our standard of review is whether, after review of all the evidence, viewed in the light
most
favorable to the prosecution, the appellate court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt. State v. Zabrinas, 271 Kan.
422, 441-42, 24
P.3d 77 (2001).

We acknowledge that certain evidence supporting the conclusion that Moore committed
the
crimes was circumstantial. But a conviction of even the gravest offense may be sustained by
circumstantial evidence. State v. Smith, 245 Kan. 381, 393, 781 P.2d 666 (1989).

Although inconsistent at times, the evidence supporting the conviction included the
testimony
of S.C., the victim, and the victim's mother. Issues of credibility are within the province of the
jury.
"On appellate review, the credibility of witnesses will not be passed upon, conflicting evidence
will
not be weighed, and all questions of credibility are resolved in favor of the State." State v.
Van
Winkle, 254 Kan. 214, 225, 864 P.2d 729 (1993), cert. denied 511 U.S. 1144
(1994). When all the
evidence is viewed in the light most favorable to the prosecution, we are convinced that a rational
factfinder could have found Moore guilty beyond a reasonable doubt.

Cumulative Error

In his reply brief, Moore advances a cumulative error argument. Cumulative trial errors,
when
considered collectively, may be so great as to require reversal of the defendant's conviction. The
test
is whether the totality of circumstances substantially prejudiced the defendant and denied the
defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however,
if
the evidence is overwhelmingly against the defendant. State v. Bedford, 269 Kan.
315, 332-33, 7 P.3d
224 (2000). Our review of the record reveals no prejudicial trial errors. Moore's argument that he
was
denied a fair trial fails.

Moore's Sentence - K.S.A. 21-4710(11)

We first consider a problem with Moore's sentence which was not raised in the briefs. See
K.S.A. 22-3504 (the court may correct an illegal sentence at any time).

Moore had a criminal history score of B, which included sexual exploitation of a child, a
person felony; indecent liberties with a child, a person felony; and theft, a nonperson
misdemeanor.
Aggravated indecent liberties with a child is a severity level 3 felony; kidnapping is also a severity
level 3 felony. Moore's criminal history score, combined with the severity level of his crimes,
called
for a presumptive prison sentence of 172-180-190 months for each crime. See K.S.A. 1997 Supp.
21-4704(a).

The district court applied K.S.A. 1997 Supp. 21-4704(j), which says:

"The sentence for any persistent sex offender whose current convicted crime carries a
presumptive term of imprisonment shall be double the maximum duration of the presumptive
imprisonment term. The sentence for any persistent sex offender whose current conviction carries
a presumptive nonprison term shall be presumed imprisonment and shall be double the
maximum duration of the presumptive imprisonment term. Except as otherwise provided in this
subsection, as used in this subsection, 'persistent sex offender' means a person who: (1) Has been
convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments
thereto; and (2) at the time of the conviction under subsection (1) has at least one conviction for a
sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto in this state or
comparable felony under the laws of another state, the federal government or a foreign
government. The provisions of this subsection shall not apply to any person whose current
convicted crime is a severity level 1 or 2 felony."

"Sexually violent crime" is defined in pertinent part in K.S.A. 1997 Supp.
22-3717(d)(2)(B),
(C), and (H) to include the crimes of indecent liberties with a child, aggravated indecent liberties
with
a child, and sexual exploitation of a child. K.S.A. 1997 Supp. 22-3717(d)(2)(L) also includes in
the
definition of a sexually violent crime

"any act which at the time of sentencing for the offense has been determined beyond a
reasonable
doubt to have been sexually motivated. As used in this subparagraph, 'sexually motivated' means
that one of the purposes for which the defendant committed the crime was for the purpose of the
defendant's sexual gratification."

The district court apparently noted that Moore had been convicted of a sexually violent
crime--the district court did not specify which one--and that his current conviction of aggravated
indecent
liberties was statutorily defined as sexually violent. The district court then doubled the maximum
sentence for a 3-B crime and imposed a 380-month prison term for the aggravated indecent
liberties
conviction.

The district court next found that Moore's conviction of kidnapping was sexually
motivated,
thus fitting the definition of a sexually violent crime under K.S.A. 1997 Supp. 22-3717(d)(2)(L).
The
district court again doubled the maximum sentence for a 3-B crime and imposed a 380-month
prison
term for the kidnapping conviction. The district court ordered the sentences to run concurrently.

At sentencing, Moore argued that the district court could not use a prior conviction to
enhance his criminal history score and use the same prior conviction to qualify him as a persistent
sex
offender under K.S.A. 1997 Supp. 21-4704(j). The district court rejected Moore's argument.

K.S.A. 21-4710(d)(11) says:

"Prior convictions of any crime shall not be counted in determining the criminal history
category if they enhance the severity level or applicable penalties, elevate the classification from
misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise
provided, all other prior convictions will be considered and scored."

State v. Taylor, 27 Kan. App. 2d 62, Syl. ¶ 3, 998 P.2d 123, rev.
denied 269 Kan. 940 (2000),
held: "A prior conviction upon which a defendant has been classified as a persistent sex offender
under K.S.A. 1998 Supp. 21-4704(j) may not be used in determining that defendant's criminal
history
category." We specifically approved the Taylor holding in Zabrinas, 271
Kan. at 443-44.

Here, the district court erred in failing to remove from Moore's criminal history the
sexually
violent crime it used to qualify Moore as a persistent sex offender under K.S.A. 1997 Supp.
21-4704(j). With one person felony removed from his criminal history score, Moore's criminal
history
category is D. See K.S.A. 1997 Supp. 21-4704(a). The presumptive sentence for a 3-D crime is
74-78-83 months' imprisonment. K.S.A. 1997 Supp. 21-4704(a). Moore's sentence for aggravated
indecent liberties and his sentence for kidnapping must be vacated and remanded for resentencing.

The Apprendi issue Moore next asserts that,
following Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,
120 S. Ct. 2348 (2000), the fact that he is a "persistent sex offender" under 21-4704(j) must be
proven to a jury beyond a reasonable doubt before it can be used to double the duration of his
prison
term. He contends that because such a jury finding was absent in this case, his Sixth and
Fourteenth
Amendment rights have been violated. We recognize that Moore's sentence must be vacated and
remanded for the reasons set forth above, but we address the Apprendi issue here for
the benefit of
the district court on remand.

Moore's constitutional challenge is a question of law over which we have unlimited
review.
See State v. Crow, 266 Kan. 690, 694, 974 P.2d 100 (1999).

K.S.A. 1997 Supp. 21-4704(j) provides that the sentence for any persistent sex offender is
presumed imprisonment in all cases and shall be double the duration of the maximum presumptive
sentence.

Apprendi held: "Other than the fact of a prior conviction, any fact that
increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond
a reasonable doubt." 530 U.S. at 490.

Moore's argument assumes that doubling the duration of his prison sentence under
21-4704(j)
increases the penalty for his crime beyond the prescribed statutory maximum, triggering
Apprendi.
The State counters that the plain language of 21-4704(j) defines the statutory maximum sentence
as
imprisonment for double the maximum term in the appropriate grid box. Thus, the State argues,
Moore has received a sentence within the statutory range and Apprendi does not
apply.

Attempting to define the statutory maximum sentence in this situation is a complicated
task
and one which ultimately is unnecessary to the disposition of this case. Instead, we begin the
analysis
by observing that the finding that Moore is a persistent sex offender requires two things: (1) the
existence of a prior conviction for a statutorily defined sexually violent crime; and (2) that the
current
crime of conviction is a statutorily defined sexually violent crime. We have recently held that
neither
of these facts must be proved to a jury beyond a reasonable doubt in order to use them to increase
a
defendant's sentence.

In State v. Ivory, 273 Kan. ___, 41 P.3d 781 (2002), we analyzed the prior
conviction
exception to the Apprendi rule. We held that Apprendi did not require a
jury finding of the fact of a
prior conviction beyond a reasonable doubt in order for the prior conviction to be included in
Ivory's
criminal history score under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701
et seq.
We also rejected the argument that Almendarez-Torres v. United States, 523 U.S.
224, 140 L. Ed. 2d
350, 118 S. Ct. 1219 (1998), the source of the prior conviction exception, had been called into
doubt
by Apprendi.Ivory, 273 Kan. at ___.

We took Ivory one step further in State v. Graham, 273 Kan.
___, 46 P.3d 1177 (2002),
where Graham raised an Apprendi objection to the use of his prior drug convictions
to increase the
severity level of his drug crimes and his sentence under K.S.A. 2001 Supp. 65-4160(c). We
compared
the use of a prior conviction to increase the criminal history score to the use of a prior conviction
to
increase the severity level of the crime, both of which increased the overall sentence. We
concluded
that the net effect was the same, and the use of Graham's prior drug convictions to increase his
sentence did not implicate Apprendi. 46 P.3d at 1184-85.

Also relevant is State v. Anthony, 273 Kan. ___, 45 P.3d 852
(2002). Anthony was convicted
of aggravated indecent liberties with a child and received an extended postrelease supervision
period
under K.S.A. 2001 Supp. 22-3717(d)(1)(D)(i). He argued that the extended postrelease
supervision
was an unconstitutional upward durational departure sentence under Apprendi. 45
P.3d at 853.

We agreed that the extended postrelease supervision period--imposed in
Anthony's case
because he committed a sexually violent crime--was an upward durational departure sentence. 45
P.3d at 854. However, we concluded:

"The question becomes whether the increased postrelease period runs afoul of the
protections outlined in Apprendi and Gould. We conclude that it does
not. Here, the district court
simply used the fact that Anthony was convicted of aggravated indecent liberties, by definition a
sexually violent crime, to impose an extended postrelease supervision period under K.S.A. 2001
Supp. 22-3717(d)(1)(D)(i). In doing so, the court was not required to make an additional finding
of fact beyond that made by the jury. Because the fact relied upon to extend the period of
postrelease supervision was found by a jury beyond a reasonable doubt, the 60-month postrelease
period imposed does not violate Apprendi or Gould." 45 P.3d at 854-55.

Here, Moore was convicted of aggravated indecent liberties with a child, by definition a
sexually violent crime. See K.S.A. 1997 Supp. 22-3717(d)(2)(C). Further, Moore was previously
convicted of sexual exploitation of a child and indecent liberties with a child, also defined by
statute as
sexually violent crimes. See K.S.A. 1997 Supp. 22-3717(d)(2)(B) and (H). The district court was
not
required to make factual findings beyond the existence of these convictions because all the crimes
were defined by the legislature as sexually violent crimes. Ivory, Graham, and
Anthony combine to
support our conclusion that the district court's decision to double Moore's sentence under K.S.A.
1997 Supp. 21-4704(j) does not violate Apprendi. We note that the Court of Appeals
recently
reached a similar conclusion in State v. Spinden, 30 Kan. App. 2d ___, ___ P.3d ___
(2002).

We affirm Moore's convictions. We vacate Moore's sentences based on K.S.A.
21-4710(11),
Taylor, and Zabrinas,and remand for resentencing.

LARSON, S.J., assigned.

REPORTER'S NOTE: Hon. Edward Larson became a Senior Judge upon
his retirement from the
Supreme Court effective September 4, 2002. Pursuant to the authority vested in the Supreme
Court
by K.S.A. 20-2616, he was assigned to hear this case to fill the vacancy created by his retirement.